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Ben Jones, Solicitor

Category: UK Law

Satisfied Customers: 39594

Experience: Specialist in UK Law with expertise in UK Employment Law

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Hi Jo
I was made redundant almost 6 months ago and have just

Resolved Question:

Hi JoI was made redundant almost 6 months ago and have just been offered a job with the same company that did not exist before. They say if I accept I must pay back 75% before 6 months, 50% 6-9mths, 25% 9-12 mths. As the policy of my previous employer(I am tuped) said this. I have never seen this document before and it says clearly it is not part of my contract of employment. Where do I stand? Can they do this?

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

Customer: My redundancy was worked out on 10 years service (this included being tupe d twice and role changing from p/t to f/t and back to f/t)

Customer: i was made redundant 30/3/13. I have just been offered a job with the company (oct 2013) no contract has been signed as yet

Ben Jones :

So you mean this is a newly created job but with the same company from which you were made redundant?

Customer: Yes. A new job at a different location 27 miles away This job only recently became vacant, was advertised, I applied and was successful

Ben Jones :

If this was an agreement you had with your previous employer, prior to TUPE, you must consider whether it was something that automatically transferred to your latest employer.

Under TUPE all rights, powers, duties and liabilities under or in connection with your contract pass to the new employer. However, this does not exclude matters which are at first glance non-contractual, such as the policy in your case and will also include rights and obligations "connected with" the contract. The issue therefore is whether this policy was in some way incorporated into your contract, for example through consistent application by the old employer.

Regardless of whether this was a policy that transferred, the employer can choose not to offer you the job if you do not agree to their terms on repayment. It is a very simple right that they can choose who they wish to employ and it is not in any way illegal to refuse to employ you if you did not agree that this was a valid policy that you must adhere to. Even if you were in the right, they have no obligation to offer you the job and the final decision rests with them. They are not discriminating against you in a legal sense and as such their decision would not be unlawful. It would be immoral, bt not illegal, which is what matters unfortunately in this case.

Customer: What about if I work as supply/cover on an ad hoc basis? I am already while we wait for the necessary prison security clearance. This has been known to take 3 months or more. If they readvertisedthe job and got someone else it could be another 4 months from now to get the position filled

Ben Jones :

it is for them to decide whether they want to employ you as temporary cover - again this is done at their own discretion but there is of course nothing preventing you from suggesting that as a way forward.

Customer: Not too good then

Ben Jones :

well you just don't know at this stage, until you propose it to them and find out what their thoughts are it is still going to be just speculation

Customer: thanks

Ben Jones :

Sorry I know this is not necessarily the answer you wanted to hear but I hope you understand I have a duty to be honest and explain the law as it actually stands and sometimes this does unfortunately mean delivering bad news. Please let me know if you need me to clarify anything.

Customer: Ok. Seems wrong that these policies can be put in place if the employee ends up worse off. Never mind, I can always get a job elsewhere. Their loss.

Ben Jones :

Also remember that it is not just about the policy - the employer has the legal right to decide whether to employ yo in this case or not. Unfortunately under law they do not owe you a job which means that as long as they do not discriminate against you, which they are not, they can decide whether they want to take you on or not. So simply by refusing to stick to this policy, legal or not, they can decide not to proceed with taking you on

Customer: And Equally I can choose not to accept. Maybe best if they start out with this attitude it could well get worse and I would have no continuous service- no rights for 2 years

Ben Jones :

yes of course you have the right to chose not to accept their offer. And it is indeed the case that even if you tart now they can still dismiss you in the first two years of your employment for more or less any reason, subject to a few exceptions

Customer: I will give negotiating a try as they are very keen to get me but I will prob have to return to my plan A which was to work locally p/t. Not all bad. Dartford crossing every day needs you to be dedicated. Thanks and good night

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

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